There are three certainties at this time of year – Mariah Carey wailing in every shop that you enter, your cat coughing up balls of tinsel whilst chasing baubles around the house and the office social committee will be spamming your inbox with invitations to eat reheated brussel sprouts in the local boozer that’s still yet to rid itself of the pre-smoking ban odour. Now, we all know that employees will enthusiastically make use of an open bar tab but we’ve also all witnessed the work colleague who takes the party that step too far.
So, what actions can an employer take in order to protect itself from the festive transgressions of its employees and where is the line drawn between work life and personal life? Can offensive comments published on twitter or inappropriate sexual advances by an employee outside of the office be used as a justification for dismissal? In short…yes, but the line that employment tribunals are willing to draw between work life and personal life is not always clear.
Work Life vs Private Life
The key issue to consider is whether the conduct of the employee is of concern to the employment relationship. Therefore firing your Head of HR for his karaoke rendition of ‘I Will Always Love You’ would be difficult to justify in front of an employment tribunal judge…unfortunately. However, if a link between a person’s conduct and their employment relationship can be established it is still important for an employer to follow proper disciplinary procedures when investigating and acting on the matter.
Where challenged, the dismissal of an employee for their actions outside of the office will follow the standard rules of unfair dismissal. Therefore the tribunal will be looking at factors such as whether the actions of the employer were reasonable, the seriousness of the actions and whether proper investigations have been conducted and procedures followed by the employer. It is therefore essential that employers have well structured disciplinary procedures and clear policies relating to employees actions outside of the workplace (including policies relating to social media and social events) and that all employees are made aware of these.
With everyone being linked through social media accounts, the boundaries between an employee’s work life and personal life are becoming ever more blurred. It is therefore more important than ever for employers to be conscious of the possible impact that an employees’ actions outside of the office can have on its business. There is nothing quite like a few too many glasses of eggnog to provide an employee with the courage to post their true feelings about that key client on Facebook, but at what point can an employer assert that an employees personal opinions have impacted upon the employment relationship?
Tribunal judges have been reluctant to provide general guidance on social media cases however, although in general employees have the right to express themselves through social media this has to be balanced where this expression infringes upon their employment. There is no hard and fast rule and this will therefore very much depend upon the facts of the case but a clear social media policy is now an essential shield for employers in order to ensure that employees know what is expected of them.
Recent case law has taken matters further and found that not only can an employee be dismissed for their actions outside of the office but in certain circumstances a company itself can also be held accountable for these actions.
In a recent case where a drunken brawl between two employees following a work Christmas party resulted in one of the employees suffering brain damage, the employment tribunal found that where there is a sufficient connection between that employee’s conduct and their role within the company, the employer can be held vicariously liable for their actions – even where those actions took place outside of the workplace. This same principle has also been applied to cases of sexual harassment and the posting of offensive comments on social media accounts where the action can be linked to a person’s employment.
No-one wants to be a killjoy over the Christmas period, especially a boss who is trying to improve employee morale through a free lunch. But in order to avoid returning to the office in the New Year to find an invitation to the employment tribunal sitting on your mat it’s important that all employees are conscious of company policies relating to their actions outside of the office.